DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 546 of 02-12-2010

Decided on : 18-07-2011

Krishan Kumar S/o Narsi Ram R/o 9-A, Ward No. 3, Uchana Kalan, Tehsil Narwana, Dist. Jind (Haryana).

.... Complainant

Versus

1. Reliance General Insurance Company Ltd., Registered Office at Reliance Centre, 19 Walchand Hirachand Marg, Bolard Estate Mumbai through its MD/GM/Competent Officer

2. Magma Shrachi Finance Limited office at Near Tinkoni, G.T. Road, Bathinda through its Branch Head /MD/Competent officer

3. Pardeep Bansal Officer of Magma Shrachi Finance Limited office at Near Tinkoni, G.T. Road, Bathinda.

4. Mr. K K Singhi, Surveyor & Loss Assessor, R/O#24, Shiri Niwas Colony, Near Gurudwara Dukh Niwaran Sahib, Patiala, District Patiala.

5. Sushil Kumar Sharma, Surveyor & Loss Assessor, R/o # 1039/20, Durga Colony, Rohtak, District (Haryana).

   ..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

For the Complainant : Sh. K.K Vinocha, counsel for the complainant.

For the Opposite parties : Sh. J S. Kohli, counsel for opposite party Nos. 2 & 3.

Sh. J D Nayyar, counsel for opposite party No. 1.

Opposite party Nos. 4 & 5 exparte.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). In brief, the case of the complainant is that he is owner of one Tata LPT 1109/42 Model Canter bearing Engine No. 447TC93B RZ808192 Chassis No. 416441BRZ706503 and Registration No. HR-32D-0299. The complainant purchased the said vehicle after availing loan from opposite party No. 2 and he has been earning his livelihood from the income of said vehicle. There is tie-up in between opposite party Nos. 1 & 2 and opposite party No. 2 is giving insurance business to opposite party No. 1 on vehicles financed by it and in case of accident, opposite party No. 2 is registering the claim with it, appointing surveyor, supplying and completing the required information from time to time , all subject to intimation to opposite party No. 1. In this way, opposite party No. 2 is agent of opposite party No. 1 regarding vehicles got insured by it as per their tie-up. The opposite party No. 2 apart from his other duties, is also dealing with the sale of Insurance i.e. he was getting the financed vehicle insured at Bathinda falling due from time to time and was registering the insurance claim at Bathinda subject to intimation to opposite party No. 1 if insured vehicle met with an accident as per tie up scheme and for the purpose he used to affix a chit on Insurance Note/Policy mentioning the wording :-

   In case of Accident, please contact :

   Mr. Pardeep Bansal, Bathinda at 0164-2239718/19

   Mobile No. 98766-31019”

   On getting the financed vehicle insured, insurance premium is debited in the account of borrower concerned by opposite party No. 2 and after affixing said chit on policy/cover note, the same is handed over to the Insured.

2. The aforesaid canter of complainant was financed by opposite party No. 2 and was got insured comprehensively by opposite party No. 2 at Bathinda from opposite party No. 1 vide policy No. 1506072334010648 effective from 18-2-2009 to 17-2-2009 for a sum of Rs. 7,12,500/- against the premium of Rs. 20,634/- which was debited in the loan account of complainant by opposite party No. 2 at Bathinda. The policy was supplied to the complainant after affixing “Chit” referred above at the back page of 1^st page. The said insured vehicle met with an accident on 16-11-2009 in the area of Village Saissarwal, District Patiala and FIR No. 317 dated 17-11-2009 was registered in P.S. Samana against Tractor driver i.e. other vehicle involved in accident. In this accident, one person had died and insured vehicle in question was extensively damaged. The complainant intimated the accident to opposite party Nos. 2 & 3 who in turn intimated that to opposite party No. 1 appointed spot surveyor i.e. opposite party No. 4. The spot survey was conducted by opposite party No. 4 and complainant paid Rs. 1250/- as fee, but he did not supply copy of survey report to the complainant. After spot survey, on suggesting by opposite party Nos. 1 to 4, complainant shifted the vehicle from spot to Shivam Motors, Jind through Shiv Crane Service, Khanauri Mandi, District Sangrur who charged Rs. 7,000/- from complainant. Thereafter opposite party Nos. 1 & 2 appointed opposite party No. 5 as final Surveyor & Loss Assessor to assess the loss and accordingly, he conducted the survey and complainant paid Rs. 7500/- to him as fee under bonafide belief that the same would be disbursed to complainant while making payment of Insurance claim. The estimate bill dated 27-11-2009 of Shivam Motors Jind for repair and labour charges of accidental insured vehicle was for Rs. 7,24,795/-. Since the estimate charges given by Shivam Motors, Jind were on higher side, the opposite party No. 5 suggested the complainant to get the vehicle repaired from any workshop, so the complainant decided to get it repaired from Vishavkarma Truck Repair & Kamani Works, Uchana Mandi i.e. home town of complainant with the purpose to get the vehicle repaired by spending lesser amount by using his influence. The complainant paid Rs. 2500/- to Pawan Dran Service, Jind for shifting the vehicle from Jind to Uchana Mandi. The complainant purchased required material, equipments component and sub-component from different shops at different stations for repair of his accidental insured vehicle and accordingly got it repaired in the month of February, 2009 by spending around Rs. 6,50,000/- for which bills were submitted to opposite parties concerned through said surveyor and loss assessor who assured to supply copy of his report to the complainant but despite receiving his fee, he has not supplied survey report to the complainant. The complainant intimated to opposite party Nos. 1 & 3 regarding completion of work and accordingly, they appointed Sh. Surinder Pal Singh Malik, Surveyor & Loss Assessor to conduct re-inspection. The complainant paid Rs. 2500/- to the said surveyor. Since 15-03-2009, the complainant has been requesting opposite party Nos. 1 to 3 to make payment of insurance claim and survey fee and other eligible expenses, but opposite party Nos. 2 & 3 told him that they have been recommending the claim to opposite party No. 1 and as and when payment will be received, would be paid to the complainant, but nothing has been paid to him so far. He also got issued legal notice dated 23-12-2009 in this regard. Earlier the complainant had filed complaint before District Consumer Forum, Jind which was withdrawn by him on account of territorial jurisdiction as opposite party No. 1 was not having branch office at Jind. The complainant alleged that besides insurance claim amount, crane charges and survey fee, he is also entitled to refund of interest paid by him to financer of the vehicle and compensation and costs.

3. The opposite party No. 1 filed its separate written reply and took legal objection that policy was issued by Kolkata Branch of the opposite party No. 1 and accident has taken place in Patiala, hence this Forum has no jurisdiction to try and entertain and decided the present complaint. On merits, it has been pleaded that Insurance policy of the said vehicle has been issued to the complainant by Kolkata Branch of opposite party No. 1 and copy of the same had been duly supplied to him at the time of its issuance with the requisite terms and conditions. The claim if any was payable as per rules and regulations and terms and conditions of the policy. In case of any accident the matter was to be reported to the opposite party No. 1 who in turn would have appointed their authorised surveyor for the spot as well as final survey and the claim would have been perused and in case the claim was found genuine, the same would have been paid as per the report of the surveyor. The empaneled surveyor is appointed and that too with the approval of opposite party No. 1. The opposite party No. 1 has denied that it has any concern with opposite party No. 3 or it has any agent or office at Bathinda. No chit as alleged by the complainant ever put on the policy or the cover note by opposite party No. 1. The opposite party No. 1 has pleaded that no approval had been taken from the opposite party No. 1 for appointment of surveyor. The insured got his vehicle dismantled and repaired without getting his vehicle surveyed from surveyor appointed by Insurance Company. The surveyor who made the report is not on the panel of opposite party No. 1, and as such his report is not binding upon the opposite party No. 1. It has been further pleaded that since no approval for the surveyor had been obtained, as such the claim of the complainant has been rightly repudiated.

4. The opposite party Nos. 2 & 3 have filed their separate written reply and took legal objections that as per clause of the agreement entered into between the parties, all disputes should be referred to Sole Arbitrator and this Forum has no jurisdiction and this complaint has been filed beyond the territorial jurisdiction as the complainant had applied for loan at Hisar, amount of loan was disbursed at Hisar, installments of loan were being paid at Hisar and insurance policy was also issued to the complainant at Hisar.

   On merits, it has been pleaded that it is the Insurance company who is authorised to appoint any surveyor and the surveyor is working under the hands of Insurance company. The Hissar Office of Magma Sharachi Finance Limited has financed the vehicle and on the request of the complainant Hissar Office of Magma Sharachi Finance Limited has provided the insurance cover to the vehicle of the complainant. To avoid negligence of the owner to skip the insurance policy, financer provide additional facility to their customer by providing insurance policy to secure the risk of accident etc., The slip mentioned by the complainant in his complaint is distributed all around the area of Districts Sirsa, Hissar and near about the Bathinda area just to facilitate the hirers to guide them to whom they would intimate about the accident of vehicle and about the nearest location of the Insurance Company from the place of accident. The opposite party No. 3 was looking after the entire insurance business of Hissar Branch, Sirsa Branch and Bathinda office at Bathinda but only to maintain data of insurance policies issued and premium, but the policies were issued at their respective locations. Being the only employee in insurance department to maintain data the surveyor Surinder Singh Malik has mentioned “through Magma Bathinda”. The opposite party No. 2 is financier and as per loan agreement executed between Magma Sharachi Finance Limited and complainant and any insurance claim awarded had to be paid to financier being the first charge. It is the sole discretion of the insurance company to accept, repudiate or settle any claim with the insured . Neither financier nor any of his employee is empowered to interfere in the matter of insurance company. The opposite party No. 1 is independent body/company and has done his business independently.

5. Registered A.D. notice of complaint were sent to opposite party Nos. 3 & 4, but none appeared on their behalf and as such, exparte proceedings were taken against them.

6. Parties have led evidence in support of their pleadings.

7. Arguments heard and written submissions submitted by the parties perused.

8. The opposite parties have strongly/hotly contested two points in the case in hand i.e. territorial jurisdiction of this Forum and the appointment of surveyor besides other points.

9. The version of the opposite parties is that insurance policy in question was issued at Kolkata office, vehicle met with an accident in District Patiala, loan was applied at Hissar, it was disbursed at Hissar and the installments of loan were to be paid at Hissar, hence this Forum has no territorial jurisdiction to entertain and decide this complaint. The opposite party Nos. 2 & 3 on facts at the end of para No. 3 of their written reply have specifically mentioned :-

   “.....The Hissar Office of Magma Sharachi Finance Limited has financed the vehicle and on the request of the complainant Hissar Office of Magma Sharachi Finance Limited has provided the insurance cover to the vehicle of the complainant, most of all it is the law when the vehicle come to the road it should be insured otherwise it is crime. So to avoid negligence of the owner to skip the insurance policy financer provide additional facility to their customer by providing insurance policy to secure the risk of accident etc., A perusal of Ex. C-11 an Insurance Cover Note issued by opposite party No. 1 of the vehicle in question reveals that at the bottom of this Cover Note Place is written as 'Bathinda' and issue date as '16-02-2008'. Further a perusal of Insurance policy Ex. C-3 of the said vehicle reveals that at the back of first page a stamp/slip Ex. C-4 has been marked wherein it has been mentioned :-

   “In case of accident please contact Sh. Pardeep Bansal -164-2239718/19, Bathinda- Mob No. 98766-31019”

   The opposite party Nos. 2 & 3 in their written reply have admitted the fact of this slip. They have mentioned in para No. 4 of their reply that :-

   “That the slip mentioned in the para is distributed all around the area of Sirsa District, Hissar District and near about the Bathinda area just to facilitate the hirers to guide them to whom they would intimate about the accident of vehicle (in case of accident) and about the nearest location of the insurance company from the place of accident” “............Opposite party No. 3 was looking after the entire insurance business of Hissar Branch, Sirsa Branch and Bathinda office at Bathinda but only to maintain Data of insurance policies issued and premium, but the policies were issued at their respective locations. Being the only employee in insurance department to maintain data the Surveyor Surinder Singh Malik has mentioned “through Magma Bathinda”. The complainant moved an application before this Forum seeking production of documents from opposite party No. 1 and accordingly, opposite party No. 1 produced some documents which the complainant exhibited in his evidence. Ex. C-14 is the claim process sheet wherein it has been mentioned :-

   “File Checked at Branch

   Name : Ashwani

   Location : Bathinda

   Date : 18-4-2009

   File Checked at H.O.

   Name .........Sd/-”

S/Sh. Surinder Singh Malik and Sushil Kumar Sharma, Surveyors have also mentioned in their survey reports Ex.C-28 & Ex. C-32 the name of Insurers as Reliance General Insurance Co. Ltd., Kolkata...Division Bathinda. Sh K K Singhi, spot surveyor has mentioned at page '2' at Sr. No. 11 in his report Ex. C-62 that :-

“11. Any other comments : In accordance with the telephone instructions of Mr. Neeraj Kumar from Bhatinda office of M/s. Magma Leasing Ltd., on dated 25-11-2009 undersigned went to the place of accident for spot survey of accidental vehicle No. HR-32D-0299.”

The final surveyor Sh. Sushil Kumar Sharma has also mentioned in his survey report Ex. C-32 at page 2 :-

“..Remarks & Observations :

Pursuant to instructions received with telephonic from the claim Manager M/s. Magma Leasing Ltd., Bathinda Office on 02-12-2008 for survey and assessment of loss in respect of above said vehicle. Next day undersigned proceeded to M.s, /Shivam Motors, Narwana Road, Jind an authorised Service Station of Tata Vehicle.”

10. Thus, a perusal of evidence produced on file reveals that insurance policy of the vehicle in question was got issued by opposite party Nos. 2 & 3 from opposite party No. 1 and version of the complainant that opposite party No. 2 is working as agent of opposite party No. 1 seems correct and version of opposite party Nos. 2 & 3 that opposite party No. 1 is working as independent body/company incorrect. Hence, this Forum is of the view that since the opposite party No. 3 is working as agent/on behalf of opposite party No. 1 at Bathinda, this Forum has the territorial jurisdiction to entertain and decide this complaint.

11. The submission of the opposite party No. 1 is that the alleged surveyors who have made reports are not on panel of opposite party No. 1 nor it appointed them as surveyors, so their reports are not binding on opposite party No. 1. No approval for surveyor had been obtained as such the claim of complainant has been rightly repudiated.

    As discussed above, the complainant by moving an application before this Forum got produced some documents which have been got exhibited by him in his evidence. The documents mentioned below are also out of the documents which have been produced by opposite party No. 1.

    Ex. C-16 is the copy of letter vide which Mr. K K Singhi of Patiala was appointed as spot surveyor and copy of this letter has been endorsed to opposite party No. 1. Ex. C-17 is a copy of letter vide which Sh. Sushil Kumar of Rohtak has been appointed as final surveyor under intimation to opposite party No. 1. Vide Ex. C-18 Sh. Surinder Singh Malik of Rohtak has been appointed as surveyor for re-inspection under due intimation to opposite party No. 1. The spot surveyor Sh. K K Singhi submitted his spot survey report Ex. C-62 on 30-11-2008 wherein he has clearly mentioned that he visited the spot after receiving telephone instructions from Sh. Neeraj Kumar Bathinda office of M/s. Magma Leasing Ltd., on dated 25-11-2008. After his spot survey, the final surveyor Sh. Sushil Kumar Sharma submitted his final survey report Ex. C-32 dated 07-03-2009, he has also mentioned in his report that he inspected the vehicle on receiving telephonic instructions from the Claim Manager M/s. Magma Leasing Ltd., Bathinda office on 02-12-2008 for survey and assessment of loss. The final surveyor at the end of his survey report under the heading 'Note' at Sr. No. 2 has mentioned “D.L. To be checked at your end.” So, after receiving final survey report, the opposite part No. 1 got verified the particulars of driving licence of Sh. Dharmbir, who was driving the vehicle in question and accordingly, inserted this job to Sh. Deepak Bhardwaj, Advocate who vide his letter Ex. C-21 has written to The Licensing Authority. Mathura, that Reliance General Insurance Co. Ltd., Rohtak has deputed him to check the genuineness and facts of said driving licence. Accordingly, Sh. Deepak Bhardwaj submitted his report Ex. C-19 to the Claim Manager, Reliance General Insurance, Panchkula to the effect that driving licence is genuine one. Thereafter, the opposite party No. 1 appointed Sh. Surinder Singh Malik who submitted his report Ex. C-28 on 15-03-2009. At the risk of repetition it is again mentioned that all these documents have been got produced by the complainant from opposite party No. 1. Hence, after appointing the surveyors one after another and receiving the survey reports, processing the claim, verifying the driving licence, the opposite party No. 1 closed the matter of the complainant just in one line that the surveyors are neither on its panel nor it has appointed them. There is no other allegation/discrepancy has been pointed out in the claim of the complainant. This act of the opposite party No. 1 amounts to gross deficiency in service on its part.

12. The objection taken by opposite party Nos. 2 & 3 that matter should be decided by Sole Arbitrator is not tenable in view of the Section 3 of the 'Act' which provides that the provisions of this 'Act' shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Hence, this complaint is maintainable before this Forum.

13. Now, the matter is set to decide the quantum of loss. The final surveyor Sh. Sushil Kumar Sharma vide his survey report Ex. C-32 has assessed the loss to the tune of Rs. 4,49,651.81 after giving details of each and every item. He has assessed the value of salvage to the tune of Rs. 20,000/-. The complainant has alleged that he has paid the survey fee to the surveyors. As per Ex. C-69 Rs. 1155/- has been paid to Sh. K K Singhi, spot surveyor. Vide Ex. C-33 an amount of Rs. 8009/- has been paid to Sh. Sushil Kumar Sharma, final surveyor and Rs. 2512/- has been paid to Sh. Surinder Singh Malik, who submitted his re-inspection report. Hence, the complainant is entitled to the refund of the survey fee paid to the surveyors in addition to the claim amount as assessed by the final surveyor Sh. Sushil Kumar Sharma, Mech. Engg, Govt Approved Surveyor & Loss Assessor, holding Licence No. SLA 23026 valid upto 27-03-2009. Reliance can be put on precedent laid down in case titled Sarvalaxmi Marines Vs. Oriental Insurance Co. Ltd. & Anr. 2007 (3) CLT 559 (N.C.) wherein it was held “Consumer Protection Act, 1986, Section 2(1)(g) – Insurance Act, 1986, Section 64UM – Insurance claim – Surveyor's report – The report of the Surveyor, who is independent agency and are qualified and licensed to carry out the work, cannot be brushed aside lightly.”

    The support can also be sought from the precedent laid down in case titled New India Assurance Co. Ltd Vs. Kamal Nayan 2007(1)CLT 112 (N.C) wherein it was held “Insurance claim – Surveyor's report – Held that report of Surveyor is an important piece of document and evidence – Cannot be brushed aside without sufficient reasoning.” The Hon'ble Supreme Court in catena of judgements has taken pains to emphasize that report of surveyor is an important piece of document and evidence which can be brushed aside by sufficient reasoning.

14. The opposite party Nos. 2 & 3 are the financer of the vehicle in question. No deficiency in service is found on their part. However, the opposite party Nos. 2 & 3 have pleaded in their written reply that claim has to be paid to them as they have first charge on the vehicle. Since there is no allegation of the opposite party Nos. 2 & 3 that complainant is defaulter in paying the loan installments, the direction cannot be given for payment of claim amount to the financer.

15. In view of what has been discussed this complaint is accepted against opposite party No. 1with Rs. 5,000/- as compensation and cost and dismissed qua opposite party Nos. 2 to 5.. The opposite party No. 1 is directed to pay Rs. 4,49,651.81 minus Rs. 20,000/- being the salvage value i.e. Rs. 4,29,651.81 plus Rs. 11,676/- paid to the surveyors as survey fee by the complainant.

16. The compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non-compliance within the stipulated time, the claim amount and the amount of survey fee, would carry interest @ 9% P.A. from the date of institution of complaint i.e. 2.12.2010 till realization. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced

18-07-2011 (Vikramjit Kaur Soni)

President

(Amarjeet Paul)

Member